Cox/Wyden passed, but so did "Managers' Amendment"

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** ** ** *** POLICY POST
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** ** ** *** August 4, 1995
** ** ** *** Number 23
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CENTER FOR DEMOCRACY AND TECHNOLOGY
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST Number 23 August 4, 1995
CONTENTS: (1) House Approves Cox/Wyden 'Internet Freedom' Bill 420 to 4
Major Victory for Cyberspace -- Indecency Statues Remain
A Serious Issue
(2) Subcribe To The CDT Policy Post Distribution List
(3) About CDT, Contacting US
This document may be re-distributed freely provided it remains in its
entirety.
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(1) HOUSE PASSES COX/WYDEN 'INTERNET FREEDOM' AMENDMENT
MAJOR VICTORY FOR CYBERSPACE -- INDECENCY STATUTES REMAIN A MAJOR
ISSUE
By a overwhelming vote of 420 to 4, the US House of Representatives
today approved the 'Internet Freedom and Family Empowerment' amendment,
sponsored by Reps. Chris Cox (R-CA) and Ron Wyden (D-OR), which would
prohibit the federal government from regulating content on the Internet,
commercial online services, and other interactive media.
Unlike the Senate-passed Exon/Coats Communications Decency Act (CDA),
the Cox/Wyden amendment ensures that individuals and parents can decide
for themselves what information they or their children receive. By
contrast, the Exon/Coats CDA would grant the Federal Communications
Commission (FCC) broad powers to regulate the expression of each and
every one of the millions of users of the Internet.
The Cox/Wyden amendment:
* Prohibits the FCC from imposing content regulations on the Internet or
other interactive media.
* Removes disincentives for online service providers to exercise
editorial control over their networks and to provide blocking and
screening technologies to their uses.
* Seeks to create a uniform national policy prohibiting content
regulations in interactive media.
CDT believes that the Cox/Wyden amendment is an enlightened approach to
addressing the issue of children's access to objectionable material
online. Unlike the Senate-passed CDA, the Cox/Wyden approach recognizes
that the Internet is a global, decentralized network, with abundant
capacity for content and tremendous user control.
House passage of the Cox/Wyden amendment sets the stage for a direct
battle between the House and Senate on the issue of government content
regulation in interactive media. CDT will work vigorously to ensure that
the Cox/Wyden amendment replaces the Exon/Coats CDA in the final version
of telecommunications Reform legislation.
NEW UNCONSTITUTIONAL INDECENCY RESTRICTIONS ALSO APPROVED
Although the House vote today significantly advanced freedom of speech
on the Internet, the threat of unconstitutional indecency restrictions
remains.
In a vote unrelated to the Cox/Wyden amendment, the House also approved
changes to federal obscenity laws which would criminalize the
transmission of constitutionally protected speech online. These
amendments were approved as part of the "Managers Amendment" to the
Telecommunications reform bill (HR 1555). Although these amendments are
more narrowly drawn than the Exon/Coats CDA or the Grassley/Dole
"Protection of Children from Computer Pornography Act (S. 892), they
clearly violate the First Amendment and remain an issue of serious
concern to CDT.
The new criminal law amendments are opposed by several prominent members
of both the House and Senate, including Cox and Wyden. As the bill makes
its way through the House/Senate conference committee, CDT will work
with Reps. Cox and Wyden, Senator Leahy, and others to:
* Remove the unconstitutional indecency restrictions added as part of
the "Managers amendment"
* Ensure that the Cox/Wyden amendment replaces the Exon/Coats CDA in the
final telecommunications reform bill
* Clarify that the Cox/Wyden amendment does not affect privacy
protections under the Electronic Communications Privacy Act (ECPA)
* Strengthen provisions that pre-emption state online censorship laws.
COX/WYDEN AMENDMENT PROTECTS CYBERSPACE FROM GOVERNMENT INTRUSION,
RECOGNIZES PARENTAL CONTROL POSSIBILITIES
The Cox/Wyden bill seeks to accomplish four principal objectives:
* PROHIBIT FCC CONTENT REGULATION OF THE INTERNET AND INTERACTIVE
COMMUNICATIONS SERVICES.
The bill explicitly prohibits the Federal Communications Commission
from imposing or content or other regulations on the Internet or other
interactive communications services (Sec 2 (d)).
This provision recognizes that Interactive media is different from
traditional mass media (such as broadcast radio and television), and
will enshrine in statue strong protections for all content carried on
the Internet and other interactive communications services. Instead of
relying on government censors to determine what is or is not
appropriate for audiences, this provision recognizes that individuals
and parents are uniquely qualified to make those judgments.
* REMOVE DISINCENTIVES FOR ONLINE SERVICE PROVIDERS TO EXERCISE
EDITORIAL CONTROL OVER THEIR NETWORKS AND TO DEPLOY BLOCKING AND
SCREENING TECHNOLOGIES FOR THEIR SUBSCRIBERS.
The bill would remove liability for providers of interactive
communications services who take good faith steps to restrict access
to obscene or indecent materials to minors or provide software or
hardware to enable their users to block objectionable material.(Sec 2
(c)) In addition, the bill would overturn the recent court decision
(Stratton Oakmont, Inc. v. Prodigy Services Co., N.Y. Sup. Ct. May 24,
1995) which held Prodigy liable for content on its network
because the service screens for sexually explicit material and
language. Prodigy now faces a $200 million lawsuit.
The bill does not intend to create an obligation for providers to
monitor or screen content or to allow violation of Federal privacy
statutes (such as the Electronic Communications Privacy Act), although
some concerns remain on these points. CDT remains committed to
addressing these concerns as the legislation moves to conference, and
has been assured by Rep. Cox and Wyden that these issues will be
addressed.
* PRE-EMPT INCONSISTENT STATE LAWS REGULATING CONTENT ON INTERACTIVE
COMMUNICATIONS SERVICES.
The bill seeks to pre-empt States from enforcing inconsistent laws,
including restrictions on content available on interactive
communications services. (Sec 2 (e)(2))
The actual scope of this preemption remains an issue of some
discussion. CDT believes that any legislation in this area MUST
contain a strong pre-emption of inconsistent state laws. A patchwork
of state laws which impose varying, and in some cases contradictory,
obligations on service providers and content providers must be
avoided. CDT will work to ensure that the Cox/Wyden bill creates a
uniform national policy which prohibits states from imposing content
regulations on interactive media.
* NO EFFECT ON CRIMINAL LAW.
The bill is not intended to prevent the enforcement of the current
dial-a-porn statute or other Federal criminal statutes such as
obscenity, child pornography, harassment, etc. (Sec 2 (e)(1))
NET ACTIVISM A CRITICAL FACTOR
When Senator Exon (D-NE) first proposed the CDA in February 1995, the
net.community reacted with strong opposition. A coalition of online
activist organizations, including CDT, EFF, People for the American Way,
EPIC, the ACLU and organized with the Voters Telecommunications Watch
(VTW), worked tirelessly over the last six months to mobilize grass
roots opposition to the CDA. Through our efforts of generating thousands
of phone calls to Congressional offices and an online petition which
generated over 100,000 signatures in support of an alternative to the
CDA, the net.community was able to demonstrate that we are a political
force to be reckoned with.
The net.campaign and public education efforts helped to encourage House
Speaker Newt Gingrich (R-GA) to come out against the CDA, and was an
important factor in Reps. Cox and Wyden's decision to propose their
alternative. As the legislation moves to the conference committee and
then on to final passage, the net.community must be prepared to continue
to fight to ensure that the new criminal provisions are removed and that
the Cox/Wyden amendment is not weakened.
GENESIS OF THE COX/WYDEN AMENDMENT
After the Senate passed the CDA by a vote of 84-16 on June 14, CDT
stepped up our efforts to find an alternative which protected the First
Amendment and recognized the unique nature of interactive media. Both on
our own and through the Interactive Working Group (a group of over 80
public interest organizations and leading computer and communications
companies, content providers, and others, coordinated by CDT. The IWG
includes the ACLU, People for the American Way, the Progress and Freedom
Foundation, America Online, MCI, Compuserve and Prodigy, and many other
organizations and corporations), worked directly with Reps. Cox and
Wyden to bolster the case that parental control technologies offered an
effective alternative to government content regulations.
To this end, the IWG held a demonstration for members of Congress and
the press in mid-July to demonstrate parental control feature of
products offered by Netscape, SurfWatch, WebTrack, America Online, and
Prodigy.
In addition, the IWG issued a comprehensive report reviewing current
technology and the state of current laws prohibiting trafficking in
obscenity, child pornography, stalking, threats, and other criminal
conduct online (this report can be viewed on CDT's web site
URL:http://www.cdt.org/iwg/IWGrept.html).
Through these efforts and the efforts of VTW's online coalition, to
educate members of the House about the problems with the Exon/CDA and
the promise of interactive media, the House today has enacted an
enlightened approach to dealing with children's access to inappropriate
material online. Today's vote represents a tremendous victory for the
first amendment and the promise of cyberspace.
NEXT STEPS
The House Telecommunications legislation (HR 1555) is expected to pass
later today (8/4). The Senate approved similar legislation (S. 652) in
June. Both bills now move to a House/Senate Conference Committee where
differences will be worked out. The Conference Committee is expected to
begin deliberation in early September. Once the Conference Committee
agrees on a version of the bill, it will be sent back to both the House
and Senate for final approval. This vote is expected to occur before the
end of October.
The Internet-censorship provisions of the Senate bill are among the key
difference between the House and Senate proposals. However, several key
members of the Senate, including Senator Patrick Leahy (D-VT) and Russ
Feingold (D-WI) have expressed opposition to the Exon/Coats approach.
CDT will fight vigorously throughout the remainder of this Congress to
ensure that the Exon/Coats CDA does not become law. We will also work to
remove the new unconstitutional criminal law amendments passed by the
House today.
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